Tuesday, September 22, 2015

In a number of great posts at Triablogue, Steve Hays has raised the question of the legitimacy of what he terms Judicial Supremacy. His question is not totally illegitimate, even though it in no way rebuts (in fact, it presupposes) my argument that Obergefell is law. So, let's briefly consider the question of so-called Judicial Supremacy.

The US Constitution is a great document, but it has certain gaps that have been noticed over the last two centuries of use. One of those gaps is the question of whether the Supreme Court's interpretation of the Constitution should be treated as better than the President's interpretation of the Constitution or the Congress's interpretation. When the branches of government disagree about what the Constitution means, who wins?

In practice, i.e. the way things are, the Supreme Court's interpretation wins. That's the way it has been, almost without interruption since the time of the founders. There are some rare situations that have challenged that status quo, such as when around 1832, President Jackson supposedly said "John Marshall has made his decision; now let him enforce it!" Nevertheless, if someone wants to know how the American system actually works, the answer is that the Supreme Court's interpretation wins.

In theory, the answer is not quite so clear. After all, each branch swears allegiance to the Constitution. If the Supreme Court's decision is not just wrong, but actually contrary to the U.S. Constitution, then the Congress should not make laws consistent with the Court's decision and the President should not enforce either the Court's decision or any other unconstitutional laws. In other words, each branch seems to have an independent duty to make sure that the Constitution is obeyed.

Of course, a lot of the controversial Supreme Court decisions don't fall into that theoretical category where the President would have to choose between contradicting the Constitution and following the Court or contradicting the Court and following the Constitution. For example, while the recent Obergefell decision may not be an objectively correct interpretation of the Constitution, it's much harder to argue that obeying the rule in Obergefell would violate some other part of the Constitution.

If one wished to argue that it does violate it, one would presumably rely on the "reservation of powers" clause or something like that, and suggest that obeying the Supreme Court would require usurping rights reserved to the states. On the other hand, that argument does not seem to have a lot of teeth. The real problem with Obergefell is its objective immorality and/or its objectively unreasonable interpretation of the Constitution.

It seems to be much less compelling that the President or Congress could simply disregard a Supreme Court decision because they don't think it was justified, even if they don't think it would violate the Constitution. After all, what if the Court did that? In other words, what if the Court didn't say laws were unconstitutional, but simply refused to treat as valid laws it didn't think were justified? That would seemingly potentially cause chaos.

Thus, in cases where there is not a clear inherent conflict between following the Court and following the Constitution, it seems that even on a theoretical level there is a legal (though not moral) obligation to follow the Court.

That's still not actual Judicial Supremacy (just so-called supremacy) because - as I've previously pointed out - there are checks and balances against a runaway judiciary. One check is that judges can be removed. Another check is that Constitution can be amended. The former option can provide new judicial precedent that overrules prior precedent. The latter can simply directly overrule the precedent.

Steve's biggest challenge to this was:

But since you refuse to challenge judicial supremacy, your appeal to impeachment or the amendment process is preemptively derailed by the very institution you presume to rein in, given the incontrovertible prerogative you ascribe to it. If the Constitution only means whatever judges say it means (a la Chief Justice Hughes), then they can "interpret" the Constitution to immunize judges from impeachment or forbid the abridgment of their authority.

Steve's argument here is wrong. What Steve should say is that if the Supreme Court were consistently given an incontrovertible prerogative, they could avoid impeachment and ignore Constitutional amendments. But the current American system does not give them that level of incontrovertible prerogative. The American system lacks that kind of consistency, and as a result does not have that absurd outcome.

Steve may want to argue that the American system would be better if some changes were made, or Steve may want to argue that the American system is inconsistent. Both of those may even be legitimate criticisms (not of me, but of the American system). But both of those arguments from Steve presuppose the point my original article made, one which my friends need to hear, namely that although Obergefell is a very bad law, in the American system it is law.

2 comments:

One, this: //The real problem with Obergefell is its objective immorality and/or its objectively unreasonable interpretation of the Constitution.//

If you watched the recent conversation Justice Breyer had, [Supreme Court Justice Stephen Breyer talks about his book, The Court and the World: American Law and the New Global Realities, at the National Constitution Center's annual celebration of Constitution Day.] with Jeffery Rosen, President and CEO of the National Constitution Center,(book.tv, CSpan, September 17, 15) he gets to the real nitty gritty dynamic that goes on between the SCOTUS Justices as they arrive at their decisions, opinions, judicial arguments, that for the most part, the status quo, are embraced and followed. In his conversation he tells about this dynamic he has with Justice Scalia and himself where Justice Scalia wants to be contextual and Breyer argues that that isn't always the way one should go to arrive at a decision. It's an argument of subjective thought that tends to give liberty to one's own view in real life and objective thought which tends to adhere to the original intent of the framers and the Constitution.

You touch on this dynamic in that sentence I highlighted above.

The second thing is: // But both of those arguments from Steve presuppose the point my original article made, one which my friends need to hear, namely that although Obergefell is a very bad law, in the American system it is law.//

That's the crux of the matter. At what point does the bad law lead to open rebellion? What moral authority do we have inherent within ourselves when the Supreme Court opines bad precedents and there is only Executive and Legislative remedy? Are, "we the people" just suppose to wait it out on our knees praying until Our God Who will do what is right will do what is right and move the other branches of co-equal Constitutional authority to act on behalf of the violation of morality the Supreme Court has established by their Constitutional authority?

I have to settle it myself based in Scripture alone. I don't have the liberty to go off into my sinful nature here and act according to my conscience! No, how can I if I indeed am dead to sin and alive unto God through Jesus Christ the Lord?

Me thinks being wise as a serpent and harmless as a dove, or pressing my opinion to that "point" is as far as I can go especially if these Words of Scripture are the railroad tracks my rail car is traveling down to get out of this fallen wicked world to the Eternal Glory in Christ I have been called into:::>

2Ti 2:3 Share in suffering as a good soldier of Christ Jesus. 2Ti 2:4 No soldier gets entangled in civilian pursuits, since his aim is to please the one who enlisted him.

"...Obergefell is a very bad law ...". The Constitution that the original framers of it arrived at by God's Providence has over time firmly formed in the due process of our civil liberties a uniquely American status quo that I suppose is what your argument boils down to in this debate. That being said, our Biblical status quo is unchanging and eternal in scope and supernatural in nature; see Romans 13 or as the Apostle Peter writes, too, see 1 Peter 2:11-17.

As an overseas (UK) reader of this & other thoughtful US blogs I do hope that the American Christians' response to this issue will not get too bogged down in the intricacies of the US Constitution, relevant though that document obviously is to the matter in your own jurisdiction.

How we engage with government that is: a) increasingly hostile to Christianity b) still practicing at least the trappings of constitutional democracy

is a problem not faced by anyone else in history & the answers are not always clear as the Obergefell debate is proving.

My point is that comparatively little media debate on these issues goes on in Europe & so many of us are looking across the pond for a lead on issues that are affecting us in much the same way.

It seems to me that the correct biblical answer(s) will be one that can be universally applied & not dependent upon a single country's constitution to make work.

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